Making Voting Constitutional

The American Prospect
Jamelle Bouie
January 30, 2013

Our governing document creates no right to vote. It’s time it did.

Early last year, when Attorney General Eric Holder took a strong stand against voter-identification laws, he emphasized how much they violate core American ideals. “What we are talking here is a constitutional right,” he said. “This is not a privilege. The right to vote is something that is fundamental to who we are as Americans. We have people who have given their lives—people have sacrificed a great deal in order for people to have the right to vote. It’s what distinguishes the United States from most other countries.”

The problem is: Eric Holder is wrong. Unlike citizens in every other advanced democracy—and many other developing ones—Americans don’t have a right to vote. Popular perception notwithstanding, the Constitution provides no explicit guarantee of voting rights. Instead, it outlines a few broad parameters. Article 1, Section 2, stipulates that the House of Representatives “shall be composed of Members chosen every second Year by the People of the several States,” while Article 1, Section 4, reserves the conduct of elections to the states. The Constitution does, however, detail the ways in which groups of people cannot be denied the vote. The 15th Amendment says you can’t prevent African American men from voting. The 19th Amendment says you can’t keep women from voting. Nor can you keep citizens of Washington, D.C., (23rd Amendment) or 18-year-olds (26th Amendment) from exercising the franchise. If you can vote for the most “numerous” branch of your state legislature, then you can also vote for U.S. Senate (17th Amendment).

These amendments were passed in different circumstances, but they share one quality—they’re statements of negative liberty, establishing whom the government can’t restrict when it comes to voting. Beyond these guidelines, states have wide leeway in how they construct voting systems. Some, like California, have opted to make voting as easy as possible, with early-voting periods, widely available absentee ballots, and online registration. Others, like Virginia, have made voting difficult, with strict ID laws and no early voting. Throughout American history, some lawmakers and officials have seen the federal government’s hands-off approach as an opportunity to tighten their grip on power and suppress opposition. At the end of Reconstruction, states passed laws to restrict African American voting. Governments led by the Democratic Party throughout the country—not just the South—had passed poll taxes, literacy requirements, and grandfather clauses, all designed to keep blacks away from the polls. When those weren’t enough, vigilantes resorted to violence, with the tacit (or outright) approval of local authorities.

This is why states can get away with so much voter suppression. We need to get this done!